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Fisher v. University of Texas at Austin (Fisher II), 576 U.S. ___ (2016)

The US Supreme Court upheld the constitutionality of University of Texas at Austin’s affirmative action program in Fisher II, in which the AAUP joined an amicus brief. The brief argued that consideration of race in the admissions process is appropriate and advanced the AAUP’s longstanding view that diversity is essential not only for students but for the entire academic enterprise. In its second consideration of Fisher’s challenge to UT’s program, the Court confirmed that universities must prove that race is considered only as necessary to meet the permissible goals of affirmative action. In particular, the university must prove that “race-neutral alternatives” will not suffice to meet these goals. In Fisher II, the Court held that since UT had sufficient evidence that its “Top Ten” admissions policy based on class rank was not adequate, by itself, to meet its diversity goals, it could permissibly consider a student’s race as one factor in a broader assessment of qualifications. This opinion now enables universities to adopt affirmative action programs that meet constitutional requirements.

The case arose when Abigail Fisher, a white student, challenged the university's consideration of race in the undergraduate admissions process when she was denied admission. Fisher argued that UT Austin's use of race in admissions decisions violated her right to equal protection under the Fourteenth Amendment. In 1996, the Texas Legislature adopted the Top 10 Percent Law. Under this law, seniors in the top 10 percent of their high school class were guaranteed admission to any Texas state university. The primary objective of the law is to draw in the best students from each Texas school, including students from predominantly black or Hispanic areas, in order to achieve higher levels of diversity. Following the Supreme Court upholding a race-conscious admissions program at the University of Michigan Law School in Grutter v. Bollinger, 539 U.S. 244 (2003), UT Austin reinstated a consideration of race in admissions decisions for those who didn’t fall within the Top 10 Percent Law.

Fisher filed a lawsuit challenging UT Austin’s decision to deny her admission. The case was first heard by the Fifth Circuit Court of Appeals in 2010, and the AAUP signed onto the American Council on Education (ACE) amicus brief submitted to the Fifth Circuit. The Fifth Circuit ruled in favor of UT Austin and the Fifth Circuit’s first decision was appealed to the Supreme Court in 2012. In that appeal, the question presented was whether the Supreme Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permitted UT Austin's use of race in undergraduate admissions decisions. Fisher claimed that either this use of race did not fall into the constitutional parameters of Grutter or that Grutter must be overturned. In August 2012, the AAUP signed onto an amicus brief authored by ACE with 37 other higher education groups. The brief argued that the educational benefits that come from a diverse student body are a compelling state interest and second, colleges and universities must be allowed to make autonomous decisions when determining the composition of their student bodies.

On June 24, 2013, by a vote of 7 to 1, the Supreme Court followed longstanding precedent and recognized that colleges and universities have a compelling interest in ensuring student body diversity, and can take account of an individual applicant’s race as one of several factors in their admissions program as long as the program is narrowly tailored to achieve that compelling interest. Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013)(Fisher I). The Supreme Court, however, ruled that the court below had not properly applied the “strict scrutiny” standard and remanded the case back to the Fifth Circuit. In November 2013, the AAUP again signed onto ACE’s amicus brief to the Fifth Circuit, which reiterated the arguments enumerated above. In July 2014, for the second time, the Fifth Circuit upheld the UT Austin admissions plan. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633 (5th Cir. 2014). Fisher petitioned to have the Supreme Court review the case (again) and that request was granted on June 29, 2015.

For many years, the AAUP has taken a leadership role in affirmative action debates by emphasizing the educational value of diversity. As early as 1978, the AAUP filed an amicus brief in Regents of the University of California v. Bakke to protect the primacy of the faculty role in developing educationally appropriate admissions criteria. In addition, AAUP policy has long supported the value of diversity in education. See “Affirmative Action Plans: Recommended Procedures for Increasing the Number of Minority Persons and Women on College and University Faculties,” AAUP, Policy Documents and Reports, 157-163 (11th ed. 2015). In continuing this tradition, the AAUP joined the amicus brief in Fisher II, authored by ACE and joined by 37 other higher education organizations.

The Fisher II amicus brief argued that the interest in a diverse student body is compelling because it is grounded in educational benefit; and that interest is rooted in educational judgment. In Grutter and Fisher I, the Supreme Court made clear that when an institution sets its educational goals—including a goal of attaining the educational benefit of a diverse student body—it makes an educational judgment that merits judicial regard. That interest can also justify narrowly tailored consideration of race in admissions as part of holistic review of individual applicants. Narrow tailoring should not be interpreted to forbid race-conscious holistic review simply because the review operates concurrently with race-neutral mechanisms. Thus the brief concluded that the Supreme Court has permitted institutions to take race into account as a consideration in the admissions decision, and it should continue to do so.

In 2016, the US Supreme Court upheld the constitutionality of the UT Austin’s affirmative action program in Fisher II. Due to Justice Kagan’s recusal from the case and with the death of Justice Scalia, only 7 justices took part, resulting in a 4-3 decision. Justice Kennedy’s opinion for the Court is significant in taking a realistic and reasonable approach that should enable universities to adopt affirmative action programs that meet constitutional requirements.

The Court applied the three key criteria from its earlier decision in this case (Fisher I): (1) a university must show that it has a substantial purpose or interest in considering race as a factor in its admissions policy and that considering race is necessary to achieve this purpose; (2) courts should defer, though not completely, to a university’s academic judgment that there are educational benefits that flow from diversity in the student body; and (3) the university must prove that race-neutral alternatives will not achieve its goals of increasing diversity.

The Court’s decision recognizes that judges should give due deference to universities in defining educational goals that include the benefits of increasing diversity in the student body, such as the promotion of cross-racial understanding and the preparation of students for an increasingly diverse workforce and society.

The Court confirmed that universities must prove that race is considered only as necessary to meet the permissible goals of affirmative action. In particular, the university must prove that “race-neutral alternatives” will not suffice to meet these goals. This was the most controversial aspect of the Fisher I decision. In Fisher II, though, the Court takes a reasonable approach, finding that UT had sufficient evidence that its “Top Ten” admissions policy based on class rank was not adequate, by itself, to meet diversity goals. By adding a “holistic” evaluation of applicants who were not admitted in the “Top Ten” program, UT was able to consider race as one factor in a broader assessment of qualifications.

The Court noted that the “prospective guidance” of its decision is limited to some extent by the particularities of the UT case. Despite this, the Court’s decision does provide important guidance to universities concerning the criteria that will be applied in evaluating affirmative action programs. The Court also emphasizes that universities have “a continuing obligation” to “engage[] in periodic reassessment of the constitutionality, and efficacy, of [their] admissions program[s].” While this requires ongoing study and evaluation by universities, the Court’s decision creates a significant and positive basis for universities to adopt affirmative action programs that meet constitutional requirements.